A TREATISE ON THE LAW OF BILLS OF EXCHANGE, PROMISSORY NOTES, AND LETTERS OF CREDIT, IN SCOTLAND*.

TREATISES upon particular departments of the municipal law have been multiplied astonishingly of late, to the grief and dismay of small practitioners, who are ambitious of a complete collection. Such a collection strikes the vulgar eye as a type of professional eminence, and, in that respect, is of great utility to the owner; but the expense of forming it is vastly oppressive, and hence it is that the clamour against the multitude of law-publications is exclusively confined to a very small and insignificant circle of the learned brotherhood. Doubtless, such treatises may be propagated to an endless and intolerable amount. Judges in this country are law-makers, and occasionally, perhaps, law-breakers; smashing an old Act of Parliament with about as much remorse as a squirrel feels in cracking a filbert; and they being, after all, but "mortal men," (as one of their number once modestly observed to a rustic who was overpowered by awe in his godlike presence,) their notions of right and expediency, "the moral fitness of things," as Philosopher Square has it, and so forth, must fluctuate more or less with the opinions of the age, and bear the faint impress of its spirit. A considerable number of years ago, it was held good that a guardian should expend his ward's money in rout and wassail, as the excellent means of strengthening the link which connects the higher and lower orders. The Lord Chancellor, however, opined differently, thinking there was no call for introducing Epicurism into the social system; and it therefore was not left to Time to correct the highly philosophical decision. But since steel links instead of golden ones have come into fashion, it may safely be predicated, that no such decision would have been pronounced at the present day. This is an exemplification of what we propose to remark, namely, that, not to the originating of new cases alone, but partly to the instability of the human judgment, is it owing that our Supreme Courts are continually giving out new decisions, thick as the leaves in Valombrosa. These float for a time like the ova of fish upon the surface of Chinese rivers, which the careful fisherman collects, and preserves in ponds until they become portly and saleable salmon. In the same way does the Collector of Decisions drag the Courts for the spawn of the intellect,-hatches them into life and palpable entities, and marshals them in the stately and phalanx-like form of a treatise or commentary.

In the extensive vineyard of the law, there is not a more invaluable labourer than the collector. His labour is not simply productive, in the common acceptation of that term, but productive of incalculable benefits to the whole community. A book which professes to embrace the whole system of law, however lucidly it may explain general principles and analogies, must, of necessity, be defective, in marking all the perpetually occurring peculiarities and exceptions, and the various modifications which rules must undergo in practice, when brought into collision with others no less sacred and valuable. Such a book, Erskine's Institutes for example, is of indispensable use to the neophyte, who derives from it a clear and unbroken view of the system, which is spread out before him like the face of a country upon a scientifically constructed map; but, like that map, it is not descriptive of numberless minute solecisms and phenomena, which the student ought carefully to investigate; and hence, every practitioner must have experienced, that it is of little value to him in solving the doubts and difficulties

A Treatise on the Law of Bills of Exchange, Promissory Notes, and Letters of Credit, in Scotland. By William Glen. Second Edition, corrected and greatly enlarged, including the most important decisions in Scotland and England, brought down to the present period; by a Member of the College of Justice. Printed for Oliver & Boyd, and Bell & Bradfute, Edinburgh. Smith & Son, and Robertson & Atkinson, Glasgow; and G. & W. B. Whittaker, and Charles Hunter, London. 1824.

which are constantly presenting themselves. To do justice to any one branch of the law, a book must be exclusively devoted to it; in which book, the connection of each case, with its governing principle, is traced, and its essentials are defined with the same precision as the primitive colours of the sun's rays by a prism. In the multitude of such works, there is not the danger which occurs in some of the sciences, of cross-lights to beguile the vision; for though the rules or decisions of courts are engendered in controversy, they fix the state of the law for the time being, and there is no mistaking their import. Writers may speculate and wrangle upon untried and hypothetical cases; but the business of the collector and commentator is that of the historian; his views are confined to the past and the present; and though some may excel in simplicity of arrangement, or depth of research, among them there can be no conflicting opinions or statements, since all derive their materials from the same unimpeachable source.

These tracts, or commentaries, of which we speak, from the narrowness and consequent comprehensibility of the subject, circulate beyond the limits of the profession, and convey legal knowledge to the hearths both of the opu lent and industrious classes. By so doing, they tend to break down the formidable power of the aristocracy of lawyers,-an aristocracy which, in an advanced state of civilization, exercises the same gloomy dominion over the public mind which the priesthood has assumed in all barbarous ages, and extends its protection to every species of rottenness and antiquated folly. These works also enlarge the sphere of that public opinion which steadies the march of the judicial intellect, and prevents those unseemly aberrations and reelings, which are so symptomatic of the intoxication of a weak head, brought on by excessive vanity. The most adventurous Bench would hesitate to pronounce a judgment, subverting a principle laid down by itself, were the public in a condition to detect the inconsistency; that Bench, to use the phraseology of a great orator, would not choose to "turn its back upon itself," when, after so extraordinary an evolution, it had to look the public in the face; and pirouettes of all kinds, we venture to say, would fall into great disrepute.

But what we particularly admire works of this kind for is, that they materially hasten a great reformation, which we are morally convinced must be effected at no very distant period. It has ever appeared to us as much the misfortune as the reproach of the age, that the bulk of mankind are necessarily ignorant of the laws which define their obligations to society, and prescribe a penalty for every breach of them; and that, while ignorance forms no excuse, legislators and lawyers combined, have succeeded in putting a knowledge of the law beyond the reach of all who cannot bestow a lifetime upon the study of it. Innumerable are the offences, both real and factitious, recognised by the criminal law, some of which the best-intentioned and best-informed are hourly in the danger of ignorantly violating; and, besides, the civil law abounds in traps and pit-falls, which no one can hope to shun, unless guided at every step by an experienced attorney. A knowledge of his rights and duties is the most useful and honourable of all acquirements to the citizen of a free state, and, were it extensively diffused, would be the most effectual safeguard of the public liberties: but to every ordinary citizen, this knowledge is positively forbid; in which point of view, his social condition is inferior, in point of respectability, to that of the mere savage, who can repeat by rote all the laws of his tribe, and expound and reason upon them to his children. As a certain English traveller set down the spectacle of a skeleton dangling in chains as a sure mark of the civilization of the land where it occurred, so we might be tempted to consider the obscurity which invests most juridical systems as a proof that the countries where these are established have long since emerged from a state of barbarism. And, doubtless, as nations advance in improvement, their wants and desires are multiplied, and laws are multiplied as a necessary consequence ;-new institutions are formed, which beget a variety of new relations; the value of rights is enhanced, and these are claimed and defended with additional subtility; hence, nice distinctions and ingenious ex

ceptions ;-advocacy in courts of law becomes a trade, and, to shroud its mysteries, a jargon is invented: add_to all which, precedents accumulate "out of all reasonable compass," and every statute is of itself a volume of unmeaning verbosity. This is the unavoidable consummation of every undigested system of law, resulting from the very nature of things, but indicative of no more than imperfect civilization. A people truly wise and enlightened will set about producing order out of this chaos, where "confusion worse confounded" reigns, by disinterring all the edicts of the legislature and dicta of judges, which lay smothered and buried in massive tomes, or rather tombs innumerable; making a digest of the whole, so far as they appear suitable to the wants of the age; and giving to this digest the force and authority of statute law. By a measure so simply grand did the Emperor Justinian immortalize his name; ex longo intervallo his illustrious example was successfully followed by the great Frederick of Prussia; and, in our own days, it was reserved for the powerful mind of Napoleon to conceive the scheme of that Code which will embalm his name in the gratitude of Frenchmen to the latest posterity.

The legislative achievements of those three monarchs demonstrate the perfect practicability of that reformation in British jurisprudence which we contemplate as one to be eventually accomplished. Already we observe an approximation to it in the measure recently proposed by a Committee of the House of Commons, namely, to abrogate and re-construct the whole system of criminal law. Considering the enormous mass of penal statutes which a childish rage for legislation has inflicted upon the country, the intended measure is not of less difficult execution than the reducing of the civil law into the simple shape of a code; and, indeed, the propriety, if not the necessity of the one measure, is an obvious corollary from the adoption of the other.

In prospect, one may be permitted to enjoy the salutary changes which would arise from this contemplated reformation. A knowledge of the laws, which regulate the conduct, and determine the rights of all, will be nearly universal; no pettifogger will have it in his power to entrap a man into an iniquitous law-suit; the number and expense of suits will be incalculably lessened, and so will the labour which a court at present has to bestow upon each particular case; the study of the law will become a necessary part of education, as it was with the young patricians of Rome, and as it was, at one period, with the sons of Scottish gentlemen. Then there will be little apprehension of the arbitrary temper of petty Magistrates; and Justices of Peace may become as signally useful as now they are the very reverse. Public prerogatives and privileges being well understood, there will be no danger of violent collisions between the Government and the people; nor will it be possible for crown-lawyers to chouse and juggle one part of the people out of their sober convictions, and the whole out of their rights. And why, since, to constitute a good citizen, a knowledge of his human obligations is essential, might not the more prominent precepts of the law be taught in public shools? As the Church of England at one time endeavoured to impose its faith and forms upon the people of Scotland, by such Christian contrivances as thumbscrews, shootings, and drownings; so now it proposes to make converts of the juvenile Irish, by torturing their minds in public seminaries with orthodox hornbooks, and similar engines, as the indispensable condition of their receiving the smallest portion of education; thus exhibiting in its conduct, at one period, the sanguinary spirit of the inquisitor, and, at another, the craft, without the exalted zeal of the Jesuit. Believing, as we do, that every attempt to initiate a mere child into the awful mysteries of religion, before it has been taught to distrust the strength of its reasoning faculties, and to seek the proper guides to conviction, is only to implant in its breast the seeds of scepticism and infidelity, which a more matured knowledge may not uproot; we apprehend that the introduction into schools of a Catechism embracing the most intelligible of legal precepts, would be a happy compromise between Church-of-England bigotry, and Catholic jealousy, and would be of universal advantage.

We are aware that these will be derided, by some, as Utopian notions; but really the state of things, which we are imagining, is but a stage in the national progress towards a state of social perfection, and it is a stage which the people of the Lower Empire, of Prussia, and of France, would have successively attained, had they possessed, as this country does, a vigorous press and popular institutions.

Having indulged in this long digression, we return to the subject more immediately before us. In this commercial country, the law of Bills of Exchange and Promissory Notes is in daily operation; and there is no person in active life who is not affected by its multitudinous provisions. As is well observed by the Editor of the Second Edition of Glen upon Bills, in his Preface," these deeds are met with so frequently in the daily business of life, and the circumstances to be attended to respecting their form, transmission, and legal effect, with the duties of the parties engaged, are so numerous and minute, while the consequences of ignorance or negligence regarding any of these par-. ticulars are often so serious, that such a work is more necessary in this than perhaps in any other department of the law." In England, thisone department has been made the subject of several commentaries by lawyers of the very first eminence. But, if we put out of view a work published upwards of a century ago, by Forbes, and which has long since become obsolete, as a guide or authority, the only Scottish Treatise upon the subject is that by Glen. When it first appeared, its utility and value were at once acknowledged, by both professional men and merchants; and to both it has ever since served as a manual. Mr Glen being a practitioner in the great mercantile emporium of Scotland, had a more accurate knowledge of the science of Bills of Exchange, and the established forms of negociating them, than falls to the lot of the mere lawyer; and appears to have been deeply acquainted with their legal essentials, privileges, and effects, as these concern the different parties interested.

Since Mr Glen's time, the law of bills has been both illustrated and enlarged by decisions, in a variety of new and most intricate cases, which have been brought under the cognizance of the Courts, and has acquired great additional consistency. A new edition of this, the only work upon the subject, became indispensable; and it is no more than justice to say, that the Editor seems to have brought to his task a most extensive knowledge of his subject, and great powers of discrimination and research. He has analyzed the different cases with the most searching accuracy, and has been no less felicitous in generalizing his observations into sound and indisputable principles. Above all, however, he has conferred vast additional value upon the work, by numerous references to the law of England, upon points which have not yet been mooted in the Scottish Courts. "That the commercial law, of both Scotland and England, is the same in its leading features, we are assured, not only by the most approved writer on the law of Scotland, but by the procedure of the Court of Session itself, in allowing the adjudged cases of the English Courts on the different branches of the law to be quoted as authorities before it ;" and, consequently, the English authorities referred to in this work may be held as settling many points in the law of Scotland which have not yet been formally decided by its Courts. The minuteness with which those points have long since been investigated by English lawyers, curiously contrasts with the contemporaneous crudities of our law; and nothing will tend more to exalt the reader's opinion of the great talent and learning of the English Bench, than the scrupulous regard to settled principles, and the utter absence of speculative and extraneous considerations which are apparent in its judgments.

In short, the work before us is of indispensable use to the student and practitioner of law, in the department of which it treats, and scarcely less valuable to the banker and merchant. The law of bills is, in truth, based upon the usages of that class of people, and the effects which they conventionally attach to certain acts and ceremonies, and the omission of them. At the same time, such usages and conventional meanings do not comprise the whole law, for, in every country they are affected, and sometimes con